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International copyright laws do not take into account the reality of the conditions of accessing knowledge in Africa and clearer limitations and exceptions are needed to achieve a balanced copyright regime at the national level, panellists said at a seminar on development research on 20 May.

The seminar organised by research organisation IQsensato focused on copyright and access to educational and learning materials in Africa, and presented the research findings of the African Copyright and Access to Knowledge (ACA2K) Project on the subject.

The research project studied eight African countries – Egypt, Ghana, Kenya, Morocco, Mozambique, Senegal, South Africa and Uganda – and aimed at better understanding the relationship between national copyright environments and access to knowledge. The choice of countries was based on a number of criteria in order to represent different legal, socio-economic, political, cultural and linguistic contexts.

ACA2K Lead Researcher Dick Kawooya said that contrary to common perception, in most countries, copyright laws are strong: they either meet or exceed some international standards.

However, he said, there are disparities concerning the application of such copyright laws, adding that in the majority of the studied countries, there are strong and adequate laws but with weak or emerging institutional framework and processes.

The major concern lies on the tertiary level of education where resources are scarce. Many government programmes concentrate on providing educational books to primary and secondary level education. However, universal access to education is one of the United Nations Millennium Development Goals, Kawooya said.

The study showed that there is a discrepancy between laws and practices, he said. “The law is at odds with context,” he added, giving the example of Senegal where there is regular photocopying of entire books, ripping of pages of books or sale of book summaries to access learning material. According to Kawooya, “not enough work was done to understand the context.”

In a number of countries there are contradictions between laws. For example, in Uganda it is probably illegal to convert content for individuals with disabilities yet in the same context there are institutions established by law to provide education and training for the same individuals.

The development of digital content and online distance learning brings another set of copyright related problems and countries need to give clearer provisions in their national legislations for reasonable copyrights, he said.

According to Kawooya, access to learning materials is precarious in most countries studied and there is a need to align national laws with practicalities and realities of the countries. “The different stakeholders need to understand the necessity of this alignment,” he said.

The study suggests that a pro-access copyright law is needed in all countries with appropriate and clear exceptions and limitations in support of learning materials access.

“We hope to be able to influence policymaking in all the countries we are watching,” said Kawooya. For instance, in Kenya, the copyright law is up for review right now” so the ACA2K research group hopes to be able to share their report and findings with different stakeholders, he said.

Carole Croella of the World Intellectual Property Organization said WIPO welcomes the initiative, as it is an important contribution to the debate. It is an opportunity to better understand the impact of the copyright environment on access to knowledge, she said.

“It is very important that governments who take the lead on this item are provided with all relevant information,” she said, so they can take the debate forward in the Standing Committee on Copyright and Related Rights. The committee is meeting from 25-29 May.

WIPO has undertaken several research projects in the field of exceptions and limitations to try to understand their implication, Croella said, adding that there was an ongoing specific study on education, including distance learning, which should be ready later in the year.

The WIPO secretariat also prepared a draft questionnaire on national exceptions and limitations which will be presented at this week’s meeting of the copyright committee as requested by member states at the last meeting. The survey is divided into three clusters: exceptions and limitations related to educational activities, activities of libraries and archives, and exceptions and limitations for people with disabilities.

The draft questionnaire will be submitted to member states for their approval on the form and on the 52 questions, she said. Once approved, it will be sent to member states.

Viviana Muñoz of the South Centre said that although the trend over the last 5 years has been to raise the threshold of protection, on copyright specifically, there is also a strong desire for a greater balance and it is very important to have academic research from developing countries in order to bring that balance from the perspective of developing countries to the debate.

“We have to look at legal architecture of the Berne Convention [for the Protection of Literary and Artistic Works],” said Falou Samb from The Centre for Socio-Eco-Nomic Development, as it is important to see that limitations and exceptions are built in this convention.

Developing countries have to understand how to “domesticate” limitations and exceptions within their national legislation because all the standards of rights protection and all the enforcement mechanisms are in the agreement but there is not the same level of understanding or implementation on how use limitations and exceptions, he said.

For Andrew Rens of the Shuttleworth Foundation, which collaborated on the ACA2K research, the gap between copyright laws and grassroots reality is significant and policymaking should be based on this type of research. “Reality-based research should lead to reality-based policymaking,” he said.

There is a lack of clear education exceptions in policies. Distance education is probably the only way for African students to get education, Rens said. “The primary policy vehicle to provide access to knowledge in most African countries is copyright law.” If people cannot access knowledge then the copyright law is failing, he said. Rens suggested that methods of calculation should be created to evaluate the economic value of exceptions, and to calculate to the value of innovations that could spring out of something that has been put in the public domain.

Christoph Spennemann of the UN Conference on Trade and Development said that African copyright laws did not seem to respond to the situation of insufficient access to knowledge, whether because resources are unaffordable or unavailable altogether. On the digital environment, many developing countries implement copyright and neighbouring rights under WIPO treaties without necessarily being part of the treaty. They should be able to devise limitations and exceptions that are specific to the digital environment. According to Spennemann, developed countries are also struggling with the issue at the moment.

He called for reforms and said there was a need to better implement flexibilities in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Berne Convention to have informed technical assistance from multilateral institutions.

There also is a need to harmonise limitations and exceptions with other policies, with other areas of IP policies and even non-IP-related policies, such as considering parallel importation of copyrighted materials, he said, adding that “once a new balance is found, it is very important to better enforce the IP rights” because the creators in Africa need to be rewarded.

In the digital environment, it is important to have a balance between copyright and limitations and exceptions because digital dissemination will increase in Africa in the future.

According to Susan Isiko Strba of the Graduate Institute of International and Development Studies in Geneva, international norms have to be reformed because flexibilities in the present legislation are not enough. She advised developing country negotiators to come better prepared to WIPO negotiations and to try to find a way to adjust international norms. She said that considering that Africa had only 3 percent internet penetration and high access costs, there was still an urgent need for printed material. Africa still needs access to printed material, she said, adding that when country delegates come to Geneva, they need to be more specific.

A WIPO official in the audience said that Recommendation 35 of the WIPO Development Agenda requested “WIPO to undertake, upon request of member states, new studies to assess the economic, social and cultural impact of the use of intellectual property systems in these states,” specifying that WIPO was to act upon requests of member states.

He advised member states to come forward with requests so that the international institution undertakes these studies. “If we have 100 requests, we need to meet those 100 requests,” he said. The Development Agenda is a collaborative effort between the WIPO secretariat and member states, he added.

Limitations and exceptions, especially in the digital area, are a challenge for developed countries as well, said Spennemann. The use of the public domain, the balance between users’ rights and rights-holders’ rights, is a dilemma. “Developed countries have a lot to learn from this debate,” he said.

Comments

Very interesting article. TRIPS does restrict access to knowledge in developing countries more than it should. Of course, there are some flexibilities in TRIPS, such as the provision in article 8 that “Member countries may, in formulating or amending their laws and regulations, adopt measures necessary … to promote the public interest in sectors of vital importance to their socio-economic … development….” In addition to trying to increase the flexibilities in and exceptions to TRIPS, both developing and developed countries should make the maximum use of such flexibilities in TRIPS and the copyright laws of their own countries – such as the U.S. fair use doctrine – to increase access to knowledge in developing countries for educational purposes. We should all do what we can to try to help. See, Douglas L. Rogers, “Increasing Access to Knowledge Through Fair Use–Analyzing the Google Litigation to Unleash Developing Countries,” 10 Tulane Journal of Technology and Intellectual Property 1 (Fall 2007).

Thanks for those valuable summaries of current debates. Though I am not an IPR expert, I wish to add the perspective of institution analysis and Design (IAD)/enterprise architecture on the matter, hoping that it can help leading the global community out of the path dependency of existing patterns of practice with their accompanying ways of thinking that DO NOT yield solutions (ref: Oakerson, R.J. The Erosion of Public Highways: A Policy Analysis of the Eastern Kentucky Coal-Haul Road Problem. Doctoral Dissertation, Dept. of Political Science, Indiana University. 1978. url: http://dlc.dlib.indiana.edu/documents/dir0/00/00/07/33/index.html“.

I wish to articulate some “neglected” “structural flaws” in the rich man’s institutions (prior to asking the poor to cope with those).

Hypothesis on current content institutions: the vague boundary between content that is in the public domain and content that is in the proprietary domain induces IRRESPONSIBLE EXPLOITATION by authors and publishers of “block-buster-like” textbooks (see section 2.2 of below linked essay).”

One ingredient for a way out of the impasse: New “Content governance institutions” that seize the opportunities offered by the new global technology platform. We must become aware that: where the granularity of the book and the (archival) journal (paper) were suitable for the age of the printing press, the web allows rights management, authoring, peer review, royalty disbursement, and service composition on the basis of much smaller content-chunks. (section 4.2.2)

For a “trial” diagnosis (by a socio-technical clinician) and an “alternative” road in therapy search, see (Chapter 3).